Yellow Fever: Is it a racist slur or just a place to eat?

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Is calling a restaurant Yellow Fever yet another example of mainstream racism? Is it a bold reappropriation of a negative stereotype? Or just a bad marketing decision?

It’s all of the above when Whole Foods hosts a pan-Asian resto called “Yellow Fever” in one of its California markets.

As anyone who’s looked into the story will know, Yellow-Fever is a modest three-restaurant chain whose co-owner, Kelly Kim, wanted a non-stereotypical name for her Asian eatery, something that didn’t involve dragons, bamboo, or jade. So she reappropriated Yellow Fever, turning a negative sexual stereotype into a positive name that was also edgy and hip. But when Kim’s third Yellow Fever opened inside a Whole Foods, social media lashed out at what many perceived to be yet another racist blunder by a mainstream corporate giant. Or megagiant, since Whole Foods is now a subsidiary of Amazon, which makes it way bigger than Starbucks.

Simon Tam did exactly the same kind of reappropriation that Kim did when he called his all-Asian pop/rock band The Slants, taking another slur about Asians and turning it into a badge of pride. That is what happened on a larger scale when African Americans reappropriated black in the 1960s—before Black is Beautiful, black was a slur—and it’s what the gay community did in the ’70s to reverse the stigma of gay and queer.

Tam wanted to trademark The Slants, but the U.S. Patent and Trademark Office (USPTO) turned down his application because the name violated the disparagement clause of the trademark law: a mark may not be offensive to a substantial percentage of the members of any group. You can name a band without a trademark, but a trademark protects a brand against competitors, and that could mean money in the bank. In what became an eight-year legal battle which finally ended at the Supreme Court, Tam argued that he should be allowed to reappropriate an anti-Asian slur. The high court agreed, throwing out the trademark law’s disparagement clause for violating the First Amendment’s free-speech guarantee (Matal v. Tam, 2017), and Tam celebrated his victory as a defense of the “rights of all marginalized communities to determine what’s best for ourselves.”

He was right to celebrate—just as we’re beginning to recognize that people might want to choose their pronouns instead of having a grammar book choose those words for them, people should have some say when naming their race or ethnicity or anything else that forms a strong part of their heritage and identity.

But there’s a downside to Matal v. Tam as well, and that involves the Washington Redskins. A few years ago the USPTO took away the District of Columbia football team’s trademark for violating the disparagement clause: the team’s name offended a substantial percentage of Native Americans (and a lot of other people, too). Now that there’s no disparagement clause, that team will want its trademark back. But the Washington football team is not a case of a people naming themselves; it’s a case of a business appropriating someone else’s culture—and using a racial slur in the process—simply to entertain fans and make money.

Without a disparagement clause to rein in brand names, all sorts of slurs-as-commodities could pop up in fine stores everywhere. That's because the Supreme Court didn’t distinguish between brands that flip a racial slur into a positive term and those that seek to perpetuate a hateful stereotype and, well, some people try to capitalize on doing that sort of thing.

What the Court said was that government should not be in the business of judging between acceptable and unacceptable brand names: that’s the job of the marketplace. If your trademark is hateful, customers will abandon you. If it’s hip and edgy, you just might get the stars you need on Yelp and TripAdvisor to keep going. When it comes to the First Amendment, the Court is always optimistic that sunlight is the best disinfectant and that good words will drive out bad ones, though a brief trip to the internet suggests that some bad words seem to be taking far too long to disappear.

So after the ruling on The Slants, Yellow Fever can have a trademark, if Kelly Kim wants one, because it’s legal now to have a trademark that reappropriates a slur. But the problem that social media seemed to have with Yellow Fever is not so much that it’s an Asian-American business with an in-your-face name whose goal is to defuse racism, not perpetuate it, while at the same time pleasing your palate.

Asians themselves are divided on the restaurant’s name issue (and the Washington football team even claimed that some American Indians felt honored by its name). But a three-restaurant chain doesn’t have the fan base of a football team, and it needs to keep its hungry diners happy to survive.

The problem for most of Yellow Fever’s critics is that Whole Foods, which they consider to be a bastion of white privilege, is offering Yellow Fever’s menu of “asian bowls” to its deep-pockets clientele just as it offers locally-sourced organic vegetables, meats, and fish, and an interesting assortment of domestic and imported wines and cheeses. Which could send the message that racial slurs, like non-GMO foods, are good for you. And so the question becomes, does the simple fact of being inside a Whole Foods market make the name Yellow Fever a slur despite the restaurant owners’ best intentions? Or might Whole Foods’ sponsorship of the restaurant be another step toward taking the sting out of a taboo phrase while showcasing a local business instead of smothering it the way Amazon smothered indie bookshops?

Ultimately, that should be up to Yellow Fever’s customers to decide, not its owners or its landlord, not the press, and not the internet. But in a world where tweets set immigration policy and could even start a war, we may find ourselves waiting longer than ever for good words to drive out the bad ones.